Wallster v. Erschbamer

2009 BCSC 1619 Wallster v. Erschbamer IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wallster v. Erschbamer, 2009 BCSC 1619 Date: 20091126 Docket: S096482 Registry: Vancouver Between: Suzanne Marie Wallster Petitioner And: Miriam Erschbamer and Robert Walker Bowe Respondents Before: The Honourable Mr. Justice Masuhara Reasons for Judgment Counsel for Petitioner: G. M. Elliott Counsel for Respondents: J. L. Straith Place and Date of Hearing: Vancouver, B.C. October 30, 2009 Place and Date of Judgment: Vancouver, B.C. November 26, 2009 Introduction [1] In 2004, Ms. Wallster, the petitioner, purchased property located at 4104 St. Albans Street, in the District of North Vancouver (the "Property"). Her neighbours are Ms. Erschbamer and Mr. Bowe, the respondents, who live on the adjoining property immediately to the east at 4101 St. Pauls Ave. They have resided at this location for close to 25 years. [2] In the fall of 2008, Ms. Wallster and her husband, Mr. Dale Wallster, retained Mr. Craig Henderson through his company Ceteck Services Ltd. for the purpose of designing and developing an energy efficient custom house. Plans were prepared for the new house and approved by the District of North Vancouver. [3] Preliminary work commenced on the Property. The plans for the new house set the roof height approximately four feet higher than the height permitted by a restrictive covenant registered against the Property (the "RC"). For some reason, Ms. Wallster or Mr. Henderson did not think to review the RC until February 2009. The RC and a separate easement (the "Easement") have been registered against title since March 16, 1972 in favour of the owners of 4101 St. Pauls Ave. Despite this, the construction continued with the hope that the respondents would consent to modifying the RC. The plan was revised to exceed the RC limit by only three feet. Currently, the shell of the house remains and the construction has not altered the existing roof level, which is within the level permitted by the RC pending a determination of this application. [4] Despite discussions between the neighbours, a resolution to relaxing the height restriction was not achieved. The petitioner has now further revised the design of the house so as to only exceed the height restriction by 16 inches. This is the height to which she wishes a modification of the RC. [5] The petitioner applies to have the RC and Easement cancelled or modified pursuant to s. 35 of the Property Law Act, R.S.B.C. 1996, c. 377 [the "Act"] to permit the house to be built to this revised height. Restrictive Covenant and Easement [6] The key provisions from the RC are reproduced below. The "Grantor" refers to the petitioner and the "Grantee" refers to the respondents. [T]he Grantor shall not erect or cause to be erected a) Any dwelling or structure whatsoever which shall exceed the height of the lower windowsill of the window situate on the West side of the present dwelling immediately South of the fire place chimney [the Grantee's house]; b) And further that in the event that the Grantor may erect a building or structure on [the Property], the same shall be erected at least 12.95 feet West of the [Grantee's property]; c) And further the Grantor covenants and agrees with the Grantee that he shall not commence any construction of a dwelling or any other structure whatsoever on [Grantor's Property] ... without first having and receiving a written approval from the Grantee of the plans, therefore, and the Grantee may reject said plans should they fail to conform to the height of the dwelling to be constructed and/or the distance from the [Grantee's property]. And it is further agreed that the words in this indenture...shall be read and construed as applied to each and every Grantor or Grantee, male or female, and to his or her heirs, executors, administrators and assigns.... [7] The Easement similarly runs with the land and grants a 6.95 foot wide corridor on the east side of the Property and runs the length of the property line between the two subject properties approximately 109 feet long. The Easement provides to the Grantee: (a) A free and uninterrupted right and easement, for persons, animals and vehicles, through, along and over that parcel of land as described aforesaid by metes and bounds and to pass and repass over the said right and easement for the purposes of ingress and egress to and from the said right and easement. (b) To clear the said right and easement and keep it cleared of all or any part of any trees, growth, building or obstructions which in the opinion of the Grantee might interfere with the passing or repassing over the said East 6.95 feet [Grantor's property] for the purpose of ingress and egress to and from the said right and easement. (c) To build and fence and/or a wall to the satisfaction and discretion of the Grantee on the said right and easement. (d) To use the said right and easement for gardening or planting of shrubs, trees or any other variety of flowers or shrubs that the Grantee may desire to plant on the said right and easement. The Grantor hereby covenants with the Grantee not to make, place, erect or maintain any building, structure, excavation pile of material or obstruction, nor to plant any growth upon the said right and easement which in the opinion of the Grantee might interfere with the safe passing and repassing over the said right and easement except by written permission from the Grantee. Statutory Provisions [8] Section 35 of the Act states: 35 (1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force: (a) an easement; (b) a land use contract; (c) a statutory right of way; (d) a statutory building or statutory letting scheme; (e) a restrictive or other covenant burdening the land or the owner; (f) a right to take the produce of or part of the soil; (g) an instrument by which minerals or timber or minerals and timber, being part of the land, are granted, transferred, reserved or excepted. (2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that (a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete, (b) the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled, (c) the persons who are or have been entitled to the benefit of the registered charge or interest have expressly or impliedly agreed to it being modified or cancelled, (d) modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest, or (e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled. Discussion and Analysis [9] The petitioner relies upon s. 35(2)(b) of the Act as the basis for her application: that the petitioner's reasonable use of the land will be impeded, without practical benefit to others, if the modification or cancellation is not permitted. [10] The essence of the petitioner's argument is that since the roof at the sought after height will obscure the view only a minimal amount more than it would if the roof were built to the height specified in the RC, there is no practical benefit to the respondents to maintain the height restriction. In support of this position, the petitioner relies upon the affidavits of Mr. Henderson and view images prepared by Mr. Humney, a designer. Mr. Henderson also deposes that alternatives to the design to bring the house within compliance of the RC have been considered, but that they would be at great expense, or in the case of blasting bedrock to build up from a lower level, would also not be permissible. He further deposes that the excess height is required as the passive ventilation design requires ceiling fans on the upper floor for air flow. In the absence of a modification of the height restriction, mechanical ventilation equipment on the exterior of the building would be required which would create ambient noise. Ms. Wallster says that she cannot tolerate the effects of air conditioning. The other flaw that Mr. Henderson identifies in the design without the height restriction being relaxed is that there would be little light permitted into the rear of the house where the master and second bedrooms are located. Mr. Henderson notes that this area of the house is currently dark as there is little space between the respondents' and petitioner's houses, only 14 feet. [11] The petitioner also submits that the respondents have had significant renovations to their home that have added several balconies, providing far better views than from the window, specified in clause (a) of the RC (the "Reference window"). [12] In regard to the Easement, the petitioner argues that the size of the Easement is not required, as the actual path to the side door of the respondents' house is 2 to 3 feet wide. There is a 5 foot wall that runs north/south and extends about 13 feet back from the southern property line and encroaches about 10 inches over the Easement boundary onto the petitioner's Property (the "Easement Wall"). It is not clear when the Easement Wall was installed but the information that I was provided during the course of the hearing was that it had been in place before the respondents took ownership. However, the wall that adjoins and runs perpendicular from the Easement Wall east/west along Tamarack Road was constructed by the respondents in 2001. This wall blocks access to the Easement from Tamarack Road. The petitioner argues that the respondents, by having done so, have taken exclusive use of the Easement. [13] In regard to the height restriction, the situation in which the petitioner finds herself is unfortunate, but relative to the respondents, she cannot expect much sympathy. The petitioner, her husband and their contractor for some unknown reason failed to do what most would consider as basic planning and preparation; that is, consider the implications of the RC and Easement registered against their property in the design of their home. The petitioner has proceeded with the construction of the house and now finds herself in a position where there is urgency in having a determination as to whether the RC should be modified or cancelled to allow the additional height. The petitioner turning to this Court to solve her problem at the expense of the very reason for the respondents' purchase of their property, namely the view, which is to be preserved by the RC, would appear to most as quite unfair. [14] The petitioner's submission is focussed on the phrase "without practical benefit to others" in s. 35(2)(b) of the Act. The petitioner has the burden of establishing that there is no practical benefit to keeping the height restriction in place. [15] Both subjective and objective factors can be taken into account in considering whether there exists a practical benefit to others: 417489 BC Ltd. v. Scana Holdings Ltd. (1997), 14 R.P.R. (3d) 231 (B.C.S.C.) at paras. 72 to 74. [16] The evidence adduced by the respondents establishes that there is a practical benefit both in terms of the view from the Reference window and real estate value. [17] It is apparent that the height restriction in the RC was put in place to preserve views from the respondents' property. [18] The property was purchased by the respondents for the views afforded from the house. [19] The evidence of Mr. Bowe and Ms. Erschbamer establishes that the view from the Reference window provides a wonderful view from their living room that covers a view of downtown Vancouver between BC Place and Canada Place through to the southern part of Vancouver Island and north to approximately Nanaimo. They entertain both friends and business associates in this room. Further, their evidence is supported by that of Mr. Krahn, a residential designer consulted by the respondents, who supported the aesthetic value of a long distance view. He also reinforced the conventional wisdom that a vista of an extensive nature has financial value and that diminishing the view with a portion of a roof would serve to impair that value. He says that the height of the house in the revised design would diminish the view from the Reference window. [20] The argument that there are better views from other places in the respondents' home does not add to the petitioner's position. The focus is on the Reference window specified in the RC and the practical benefits derived at that location. Further, I find no merit in the argument that the sought after roof height would only impede slightly the view from a roof built to the height permitted in the RC, given that a practical benefit exists. [21] It is also apparent that the additional height requirement in the petitioner's house design is not necessary to meet building code requirements. Mr. Henderson deposes only that it is "most desirable." The driver of the roof height is the petitioner's desire for passive ventilation in the house, and that ceiling fans to permit this are required and apparently necessitate the greater height. It would also provide for additional natural light from glass panels which would be installed at the top of the walls. However, Mr. Henderson has acknowledged that mechanical ventilation could be used to achieve the ventilation requirements without increasing the roof height. It is only the petitioner's preference for passive ventilation that necessitates the higher roof level. While Mr. Henderson deposes that the alternative of digging out the foundation and having the structure built up from a lower level is not feasible because this would require blasting, which in his view would not be permitted because of the proximity to the respondents' foundation and that, in any event, such a task would require the total demolition of the existing structure and re-servicing of the lot at great expense, this is not a factor that is relevant to the issue of a practical benefit. [22] In the circumstances, I conclude that the petitioner has failed to demonstrate that the absence of a practical benefit to others. [23] I also find that the petitioner has not satisfied the other criteria set out under s. 35, in that: a) There have not been changes in the character of the land or other circumstances that are material that make the RC obsolete; b) The respondents have not expressly or impliedly agreed to a modification or cancellation of the RC; c) The petitioner has not shown that the respondents will not be injured by the modification or cancellation of RC; or, d) The RC is not invalid, unenforceable or expired. [24] The materials and submissions indicate that the dispute surrounding the Easement is secondary to the dispute over the height restriction in the RC. It is apparent that the Easement Wall encroaches over the boundary of the Easement. To the extent that the petitioner seeks to have the encroachment removed it would seem that this should be done. But this is not the relief sought. Rather, it is a modification or cancellation of the Easement. In this regard, I find that the petitioner has not met the requirements under s. 35 (2) of the Act justifying the modification or cancellation of the Easement. I find that the evidence establishes that the Easement provides a practical benefit to the respondents with respect to light, air and access. There is evidence that access is required for the side door of the respondents' house. I note as well that though there is a complaint of the wall on the Easement, other than the encroachment, the Easement terms specifically state that a wall may be built on the Easement. The wall extends back only about 13 feet of the 109 foot length of the Easement and also runs perpendicular parallel to Tamarack across the Easement. Both the respondents' and the petitioner's evidence via Mr. Henderson supports the need for light and air in terms of space, which the Easement facilitates. As a final point, if any change were to be considered regarding the removal of either wall segment, inquiries to the municipal or other public authority would be required under s. 35 (4)(a) of the Act. The petitioner's statement that "it is incredible to me that one lot consists of an easement to the Respondents which constitutes 10% of our entire area. The taxes which we pay each and every year include, of course, payment for the easement area" does not acknowledge the obvious, that the market value for the Property both at the time they purchased it to the present would reflect the Easement and the RC. Conclusion [25] It is unfortunate that the petitioner and her husband find themselves in a difficult position regarding their home redesign. However, the basis for the requirement that the respondents, who had no involvement in the planning or in the decision to start construction, be subject to an order that removes a real benefit that they derive from both the RC and the Easement has not been established. [26] The application is dismissed. [27] The respondents are entitled to costs at Scale B. "The Honourable Mr. Justice D. M. Masuhara"